Hon. Marilou McPhedran: Honourable senators, as a senator from Manitoba, I want to acknowledge that I live on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene peoples and the homeland of the Métis Nation. I also want to acknowledge that the Parliament of Canada is on unceded and unsurrendered Algonquin Anishinaabe territory.

I would also like to note that we have many people joining us today from across Turtle Island who are located on both ceded and unceded land.

I would like to thank all those of you who have taken the time to think about and consider the issues raised through this inquiry with regard to our very unique institution, our model of self‑governance, and our moral commitment to providing our citizens with a modernized, transparent, accountable, rigorous and fair Senate. We are vested with many duties, the most important of which is public accountability.

Many of you have contacted me privately to discuss these topics in more detail, and I have found these discussions enlightening and motivating. I especially want to thank Senator McCallum, who has spoken out publicly about some key aspects of Senate inequity.

In submitting this inquiry, I proposed changes to our use of parliamentary privilege, public financial disclosure procedures, and protocols, reporting and transparency in the Senate Ethics Officer’s investigations, and I suggested codifying our rules to ensure greater clarity in their interpretation.

I hope the Standing Committee on Ethics and Conflict of Interest for Senators will commit to examining these issues and will consider the suggestions I have sent to them.

However, the purpose of this inquiry goes beyond any specific requests made to a Senate committee.

[English]

In that light, I rise this evening first to thank you for listening. I acknowledge that your leaders decided on a different course for this evening, but I hope you will forgive me for asking for my right to speak in accordance with our Senate Rules when you hear what I feel compelled to say to you, my colleagues, to whom I feel I owe the courtesy of first telling my truth and sharing evidence of what I did, and why, believing then and now that my efforts — which were never solitary and never attention‑seeking — were in good faith, dedicated to trying to save lives, with a focus on women and girls. I’m very grateful for the fact that I can cry and speak at the same time.

To close my inquiry, I bring to you another case study that illustrates many of the complex issues that this inquiry has encouraged for consideration. The case study is my own, and I respectfully invite you to assess the actions taken based on the evidence that I share with you here.

I stand today because of my desire to share this evidence first with you, my colleagues in this chamber, and I need to underscore that those I name in presenting this evidence were, and remain to me, trusted, diligent and compassionate officials, for the most part, who should be commended — not reviled or used as an excuse for promises not met by Canada. On September 21 and 22, 2022, The Globe and Mail published front‑page articles naming Immigration, Refugees and Citizenship Canada, or IRCC, as the primary source for their articles, but anonymously. Those headlines included “Canadian senator sent documents to Afghan family that weren’t authentic, Ottawa says” and “A senator sent inauthentic documents to stranded Afghans,” accusing me of issuing inauthentic or — in the words of one of the reporters when she wrote to one of the non-governmental organizations, or NGOs, I was working with — “fake documents” from Global Affairs Canada to Afghans, mostly to women seeking to save their lives and escape the resurgent Taliban regime.

Colleagues, I need to say this to you in person: This is not true. It is not true on the facts, and it has been grievous in impact, reducing my effectiveness to try to evacuate Afghan women still trapped, in hiding and at extreme risk, as well as those we have managed to get out — because we have managed to get many out — and to help them resettle, to help them survive whatever country they got dumped in, whether it was Albania or Pakistan, while they would wait and wait and wait to come to Canada, as we promised them they could.

Beyond immediately stating to the reporter my innocence of these allegations — and asserting that the documents in question were very much authentic and provided to me by trusted, high-level government officials — I chose to stay quiet, shielding those officials and advocates, but this is no longer an option as of tomorrow.

In support of Afghan applicants who are taking IRCC to court, I am providing an affidavit tomorrow, and it is important to me to provide my evidence first to you, my honourable colleagues in this chamber.

I was a feminist, activist lawyer for 40 years before being appointed to this august place. Now I am a feminist, activist senator. That’s who I am. My advocacy in supporting Afghan women and girls to live their rights predates the August 2021 disastrous Western exit from Kabul by more than 20 years, working with many organizations, including the Canadian Council of Muslim Women and the Canadian Women for Women in Afghanistan. I have travelled to Afghanistan with the Canadian Armed Forces to meet with officials on security issues affecting Afghan women and girls.

Many senators in this chamber have deep connections and involvement in defending and advancing human rights and protections for Afghans, especially Afghan women and girls.

To anyone who knows the region, the Taliban resurgence was not the surprise often portrayed by some media. In February 2020 when former President Trump signed the U.S.-Taliban deal that signalled the U.S. troop withdrawal, experts the world over raised warnings about what was going to happen, and it did. To its credit, The Globe and Mail ran a January 2022 article by the founding Chair of the Afghanistan Independent Human Rights Commission and former Afghan Deputy Prime Minister, Dr. Sima Samar — whom I’m honoured to say I’ve known since 2001 — warning of a looming catastrophe and pleading with Canada to act decisively to save lives.

While I am proud of my advocacy for evacuating Afghan women parliamentarians, athletes and young human rights defenders on the Taliban kill list, I am also so proud of and grateful to colleagues with whom I have worked before, during and after the fall of Kabul to the Taliban, including Senators Boehm, Omidvar, Ataullahjan, Marty Deacon, Jaffer, Plett, Housakos, Dasko, Pate, Ravalia, Simons and Patterson, Ontario, to help Afghans find safety. Many of us have reached out to Prime Minister Trudeau and other high-level officials imploring action long before the fall of Kabul. Many more have been advocating to Immigration, Refugees and Citizenship Canada, or IRCC, on behalf of Afghan families currently held in various states of limbo in the bureaucratic nightmare of immigration processing. Many of us have collaborated with federal, international and civil society organizations and networks to facilitate this work. That’s what senators can choose to do, and many of us are still doing it almost every day.

My own outreach during that period included Canadian ministers, ministry officials, ambassadors, U.S. and international counterparts, military and multilateral organizations such as the Inter-Parliamentary Union. Our collective goal was always to maximize the number of Afghan lives we could save.

In the context of the announcement on August 13, 2021, two days before the fall of Kabul and the same day a federal election was called on the 15th, IRCC Minister Marco Mendicino, Minister of Foreign Affairs Marc Garneau and Minister of Defence Harjit Sajjan — by the way, it’s kind of odd that the women and gender equality minister, who was born in Afghanistan, wasn’t part of that group, but let’s put that in brackets — made a joint announcement:

. . . Canada will resettle 20,000 vulnerable Afghans threatened by the Taliban and forced to flee Afghanistan.

. . . we will introduce a special program to focus on particularly vulnerable groups that are already welcomed . . . through existing resettlement streams, including women leaders, human rights defenders, journalists, persecuted religious minorities, LGBTI individuals, and family members of previously resettled interpreters. . . .

Time doesn’t allow detailing of the mounting danger and chaos at the Kabul airport, also often referred to as Hamid Karzai International Airport, or HKIA, the key exit point for Afghans seeking to flee and where international forces, including our Canadian soldiers, held a rapidly deteriorating perimeter protecting access to the airfield, the only place in Afghanistan not controlled by the Taliban after the fall of Kabul on August 15.

I’m sure you remember those images of bodies falling off rolling airplanes and Canadian planes taking off nearly empty. Nevertheless, my experience of most Canadian officials — especially members of the Canadian Armed Forces — was their earnest efforts to help vulnerable Afghans, to go to the edge of their limits and do their best to help. But their good intentions could not undo a perfect storm of crippling failures, failures in communication, coordination and administrative roadblocks that combined to guarantee those failures. Not only were Afghans being shot, beaten and choked with tear gas, but I kept getting reports from Afghan women that even when they made it to the line of Western soldiers around the airport, they were denied access and often told they needed a form. But at that point, no one was defining what form.

It was often up to soldiers to make these life-or-death decisions because embassy officials were gone or they were very busy leaving, creating a vacuum — as reported in one newspaper, quoting an advocate — of official, government-run mechanisms for those most at risk to have safe passage out of the country. In short, the Canadian promises announced through Ministers Mendicino, Sajjan and Garneau to evacuate and resettle 20,000 vulnerable Afghans were not working very well on the ground.

By August 22, a week after Kabul fell, media reported that Mr. Sajjan said that Canadian special forces were empowered to do what was necessary to get people out.

Minister Sajjan was also quoted as saying that our troops, “. . . have all of the flexibility to make all of the appropriate decisions so they can take action.”

Senator McPhedran: Yes.

Hon. Marilou McPhedran: Honourable senators, I would very much like to be able to speak from my place on the Order Paper, if I may, please. I believe it is my parliamentary right to do so.

Senator McPhedran: Key within the kinds of communications that were happening day and night was a small circle of high officials into which I had been invited by Minister Monsef, and I asked to bring in a consultant who had been working with me for a number of years because she was a member of a national team here in Canada. I had been asked to help hundreds — many more — athletes than I was already trying to help parliamentarians and human rights defenders, and I just didn’t have more hours in a day. That email circle — I have every email. They are dated and stamped. The authorities are named within them. I can tell you here tonight that template that we used to try and help — and we have succeeded — and when I say “we,” I mean a network from Denmark to Zurich to Australia to Canada to the United States, everyone doing their best. But we used what’s called a visa facilitation letter. And I got it. It was conveyed to us, to our group, by the chief of staff for the then-defence minister. If somebody can’t trust that as a source, I don’t know what source you can look to.

That document — I obviously can’t detail all of the emails, but I have all of the evidence. It is readily available to any of you who want to see everything I have from that time period. It is anticipated there will be a third article with similar headlines. We’ll just have to deal with that. But the affidavit — and I need to finish tonight — is because six Afghans at extreme risk are taking IRCC to court. I hope I can be helpful to them.

Thank you very much. Meegwetch.

(Debate concluded.)

(At 7:29 p.m., pursuant to the order adopted by the Senate earlier this day, the Senate adjourned until Tuesday, February 7, 2023, at 2 p.m.)

Hon. Marilou McPhedran rose pursuant to notice of December 2, 2021:

That she will call the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.

She said: Honourable senators, as a senator from Manitoba, I acknowledge that I am on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene, and the homeland of the Métis Nation.

I also want to acknowledge that the Parliament of Canada is located on the unceded, unsurrendered territory of the Algonquin Anishinaabe people.

[English]

Honourable senators, I rise today to be the first speaker in the Forty-fourth Parliament to inquiry 6, which calls the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.

Before speaking today, I sought feedback from a range of experts including retired senators and I am grateful for their time and attention to this issue. As one said to me, name the elephant in the room, and so I will. Honourable colleagues, please be assured that my inquiry is addressed to all senators, and it’s not intended in any way to target a particular senator.

It may be recalled that I have introduced similar inquiries in each session since being appointed to the Senate, long before I resigned from the Independent Senators Group in October 2021.

Both the Senate and the House of Commons are equipped with ethics codes which, although similar, are nonetheless distinct and separate policies. Beyond the fact that the Senate code manages to be 20 pages longer than its Commons counterpart, the codes are largely similar in content but there are significant differences that make the Senate’s code less demanding.

For one example, income thresholds for disclosure are under $1,000 for House members and under $2,000 for senators.

A second example is that Senate disclosure provisions apply mostly to the senator and their spouse, whereas the House provisions cast a wider net to include income of family members.

Another is that their code’s purpose section explicitly requires MPs to:

(b) demonstrate to the public that members are held to standards that place the public interest ahead of their private interests and to provide a transparent system by which the public may judge this to be the case . . . .

But section 1(b) of the Senate code does not include such a clear and unequivocal statement of purpose.

As a fourth example, the House code articulates a third principle that the obligations under the code “. . . may not be fully discharged by simply acting within the law. . . .” Again, the Senate code contains no such reference.

There is also a significant difference between the two houses in that the mandated five-year review of the MPs’ code — which is occurring now — is being conducted in public by the Standing Committee on Procedure and House Affairs. In presenting his report to the review committee, the Conflict of Interest and Ethics Commissioner stressed that his recommendations for changes:

. . . aim to safeguard public trust in the integrity of the House of Commons and its Members, and in their endeavour to fulfill their public duties with honesty all while upholding the highest standards.

Recently, I sent a non-confidential letter — not my first such letter — to all members of the Senate Standing Committee on Ethics and Conflict of Interest for Senators. Today I seek to ensure that some key points in that letter are on the public record for the consideration of all senators, because we are all responsible, collectively and individually, for our ethical conduct and for upholding the honour of our institution and our titles.

Honourable colleagues, is this really a responsibility we should be farming out to a Senate committee, no matter how honourable and principled senators on that committee may be?

In my letter, I proposed that Senate self-governance would benefit from clarifying amendments and a consolidation of interpretive commentary to our ethics code to provide greater guidance in relation to extra-parliamentary activities, and I provide several suggestions for both process and content for further study.

Today I would like to highlight several opportunities for a more fulsome review than addressed in recent Conflict of Interest Committee reports, namely the seventh report in the Forty-second Parliament, released in 2019; and the second and third reports in the second session of the Forty-third Parliament, released in 2021.

Honourable colleagues, we would all benefit from clear amendments to the ethics code and guidance regarding the code’s application to extra-parliamentary activities. In doing so, it is likely that public skepticism of the Senate and its members could be reduced.

The ethics code, the Conflict of Interest Committee’s directives and the Senate Ethics Officer’s interpretation of the ethics code in recent inquiry reports make it clear that the ethics code applies to senators’ extra-parliamentary lives. However, some senators’ awareness of the code’s application outside the context of their senatorial duties seems to be quite limited.

It seems reasonable that we all want an ethics code that balances between allowing senators to be community and social leaders while prohibiting situations that would cause substantial public doubt in our ability to serve Canada in the public interest.

Section 2(1) of the ethics code sets out a requirement that “Senators shall give precedence to their parliamentary duties and functions over any other duty or activity . . . .”

More broadly, section 7.1(1) of the code provides that “A Senator’s conduct shall uphold the highest standards of dignity inherent to the position of Senator.”

Arguably, then, no action we take in public or private can be isolated or shielded from the added authority and responsibility we carry every day as members of the upper chamber.

Indeed, in a March 9, 2017, SEO inquiry report regarding disgraced former senator Don Meredith, it was specified that while 7.1 does not “. . . invite a free-standing analysis of whether certain conduct merits moral condemnation . . . ” it certainly does, however:

. . . require an evaluation of whether alleged conduct (a) undermines the standards of dignity inherent to the position of Senator, such that, for example it impacts a Senator’s professional reputation, integrity or trustworthiness, or (b) may have an adverse impact on the reputation of the office of Senator or the Senate as an institution.

These 2017 criteria have been restated in subsequent SEO communications, such as the March 19, 2019, SEO inquiry report regarding former senator Lynn Beyak. As well, a published opinion by the SEO, prepared at the request of distinguished former senator André Pratte, issued April 10, 2019, conclusively held that these criteria were clearly applicable to all matters that arose in relation to a senator’s “outside activities,” such as “. . . being a director or officer in a corporation, association, trade union or not-for-profit organization . . . .” — those words being direct quotes from section 5(c) of the ethics code.

In particular, Mr. Pratte is to be commended for openly sharing the SEO’s opinion, which took the view that section 5 of the code limits outside activities to those that can be undertaken while fulfilling senators’ other obligations under the ethics code, including with respect to maintaining the public’s confidence in the senator’s integrity.

Colleagues, the Senate Conflict of Interest Committee has the mandate to consider, on its own initiative, all matters relating to the ethics code, so I have requested action on eight points of inquiry, and that they be placed on the Conflict of Interest Committee’s agenda for the Forty-fourth Parliament, and that they remain on Conflict of Interest’s agenda until each point has been examined openly and thoroughly by the committee, including by way of one or more public hearings for which any senator can suggest witnesses to be heard and information to be examined and reported on in a public report from the committee in response, to be tabled in the Senate without delay.

Please allow me to summarize my eight points of inquiry as follows. Regarding consultancy arrangements, one would be that the Conflict of Interest Committee conduct a comprehensive comparative review of ethics codes for parliamentary bodies guided by the Westminster model regarding parliamentarians entering into consultancies, whether by formal contract or informal agreement for any payment in money or compensation of any kind from government departments, corporations, organizations, individuals or any other entity based in Canada or in any other country, to identify amendments to the ethics code regarding (a) what form of public disclosure should be required; and (b) whether those parliamentarians should be voting on legislation covering topics that they have consulted on and received compensation in any form for such consultation.

Regarding board memberships and advisory boards, the second is that the Conflict of Interest Committee conduct a comprehensive comparative review of ethics codes for parliamentary bodies guided by the Westminster model regarding parliamentarians being paid and/or compensated and/or rewarded in any manner as board directors or advisers of for-profit or not‑for-profit corporations or of any government corporations or other organizations, individuals or any other entity based in Canada or in any other country, to identify possible amendments to the ethics code regarding (a) what form of public disclosure should be required; and (b) whether those senators should be voting on legislation covering the industries or topics that they have consulted on and/or from which they received compensation in any form.

The third is regarding business dealings among senators: included in the comprehensive review addressing the issue of disclosure by senators who are business partners or in any way engaged together in business activities geared to making a profit, receiving compensation in any form over and above their Senate salaries.

Another is regarding parliamentary privilege and accountability regarding the SEO’s authority and function under the ethics code to address if there is a need to provide for a check and balance within the SEO function: Conflict of Interest should examine parliamentary privilege, as it is applicable to the SEO, through a lens that would allow for meaningful scrutiny over the SEO operations, thereby increasing accountability without undermining the essential functioning of the office or duties of confidentiality to people involved in an SEO investigation.

Number five is that Conflict of Interest should assess and report publicly on the extent to which the SEO may claim parliamentary privilege to create a cloak of confidentiality and privilege over administrative and procedural practices or operations that do not breach confidentiality promised by the code, because parliamentary privilege is not without limits.

My next point is to investigate whether a needed check and balance would be provided by adding procedural rights for non-parliamentarians impacted by SEO inquiries.

Number seven would add a mechanism for error correction. As such, in reviewing possible amendments to the ethics code, Conflict of Interest should consider how to implement an effective appeal process within the ethics code, as the SEO’s rulings are not subject to judicial review while acting under a recognized category of parliamentary privilege.

Number eight is with regard to commentary to increase understanding of the Senate ethics code: Some ethics codes compile and include commentary accompanying the codes’ dispositions. This commentary serves as an educational tool and as an informational resource.

The Code of Conduct for Members of the Legislative Assembly of the Northwest Territories contains detailed commentary accompanying its provisions. Similarly, the Canadian Judicial Council’s Ethical Principles for Judges contains detailed commentary.

Honourable senators, we are here to serve Canada and are generously paid from public funds to do so. Is it not reasonable for the public to expect that the absolute and unique self‑governance granted to the Senate of Canada, entirely funded by public money, should meet the highest threshold for good governance with clear, enforceable standards of accountability and transparency?

In my letter to the Standing Senate Committee on Ethics and Conflict of Interest for Senators, I set out the points shared with you today in more detail. Now I invite all senators to consider and respond to these points, or to speak to any other matter related to the code, including current interpretations of what conduct should or should not be protected by parliamentary privilege. This is your opportunity to decide what aspects of our unique self-governance merit further contemplation by contributing to the exploration in an open, transparent and collegial manner in the public interest. Thank you, meegwetch.

(On motion of Senator Pate, debate adjourned.)

(At 5:22 p.m., the Senate was continued until tomorrow at 2 p.m.)

Hon. Marilou McPhedran: Honourable senators, I give notice that, two days hence:

I will call the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.